The appropriate Government must pass a separate order remitting the unexpired portion of the sentence, and due consideration by the Government is necessary for premature release of convicts.

Judgment

RAJENDRA BABU, J.- This writ petition filed under Article 32 of the Constitution seeks for the release of the petitioner who is undergoing imprisonment for life after having been convicted under Section 302 IPC read with Section 34 IPC. The claim of the petitioner is that he has undergone the following period of actual sentence and earned remissions:

_______________________________________________________________________Years Months Days

_______________________________________________________________________

(a) From 25-6-1982 to 1-5-2000 17 10 6

including undertrial period confinement 5 8 29

(b) Remissions earned or government

remissions granted up to 31-12-1999

(c) Total sentence including remissions 23 7 5

2. The petitioner also claims that under Section 61(1) of the West Bengal Correctional Services Act 32 of 1992, which on Presidential assent being given came to force with effect from 14-4-2000, he is entitled to be released inasmuch as he had served the sentence and earned remissions as detailed above and was entitled to be released as on 27-9-1996. The details are set forth hereunder:

Year Months Days

(i) Length of life 20 0 0

imprisonment under the

definition of punishment

vide explanation is:

(ii) Deduct the period of 5 8 29

remission earned or granted

under Section 58 or Section 14 3 1

Days Months Year

_______________________________________________________________________

(v) Sentence of the petitioner 3 9 1982

started from the date of his 0 2 8

sentence on 3-9-

1982

(vi) Add the amount actual 24 0 14

sentence to be undergone

from Item (iii) above

(vii) Date of release on 27 that is, 9 1996

which the Superintendent of 27-9-1996

Jail was liable to release the

petitioner under Rule 771 now

under Section 61 (1) read with

Rule 571 in Chapter XIII, West

Bengal Jail Code

3. After examining the legal position as to the nature of the powers arising under Section 432 CrPC read with Article 161 of the Constitution and the relevant Rules relating to remission of sentences, it is observed in State of M.P. v. Ratan Singh1 as under: (SCC Headnote)

"(1) That a sentence of imprisonment for life does not automatically expire at the end of 20 years including the remissions, because the administrative rules framed under the various jail manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code. A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under Section 401 of the Code of Criminal Procedure, 1898;

(2) That the appropriate Government has the undoubted discretion to remit or refuse to remit the sentence and where it refuses to remit the

iii) Deduct the period of set-off under Section 428 CrPC, 1973

(iv) Total amount of actual sentence the petitioner herein was liable to undergo sentence no writ can be issued directing the State Government to release the prisoner;"

4. In Naib Singh v. State of Punjab2 it was noticed that a distinction